Reported with an amendment, committed to the Committee of
the Whole House on the State of the Union, and ordered to be
printed

Strike out all after the enacting clause and insert
the part printed in italic

For text of introduced bill, see copy of bill as
introduced on December 1, 2011

A BILL

To prohibit discrimination against the
unborn on the basis of sex or race, and for other
purposes.

1.

Short title

This Act may be cited as the
Prenatal Nondiscrimination Act
(PRENDA) of 2012.

2.

Findings and
Constitutional authority

(a)

Findings

The Congress makes the following
findings:

(1)

Sex discrimination
findings

(A)

Women are a vital part of American society
and culture and possess the same fundamental human rights and civil rights as
men.

(B)

United States law
prohibits the dissimilar treatment of males and females who are similarly
situated and prohibits sex discrimination in various contexts, including the
provision of employment, education, housing, health insurance coverage, and
athletics.

(C)

Sex is an immutable
characteristic ascertainable at the earliest stages of human development
through existing medical technology and procedures commonly in use, including
maternal-fetal bloodstream DNA sampling, amniocentesis, chorionic villus
sampling or CVS, and obstetric ultrasound. In addition to
medically assisted sex-determination, a growing sex-determination niche
industry has developed and is marketing low-cost commercial products, widely
advertised and available, that aid in the sex determination of an unborn child
without the aid of medical professionals. Experts have demonstrated that the
sex-selection industry is on the rise and predict that it will continue to be a
growing trend in the United States. Sex determination is always a necessary
step to the procurement of a sex-selection abortion.

(D)

A sex-selection
abortion is an abortion undertaken for purposes of eliminating an unborn
child of an undesired sex. Sex-selection abortion is barbaric, and described by
scholars and civil rights advocates as an act of sex-based or gender-based
violence, predicated on sex discrimination. Sex-selection abortions are
typically late-term abortions performed in the 2nd or 3rd trimester of
pregnancy, after the unborn child has developed sufficiently to feel pain.
Substantial medical evidence proves that an unborn child can experience pain at
20 weeks after conception, and perhaps substantially earlier. By definition,
sex-selection abortions do not implicate the health of the mother of the
unborn, but instead are elective procedures motivated by sex or gender
bias.

(E)

The targeted victims of
sex-selection abortions performed in the United States and worldwide are
overwhelmingly female. The selective abortion of females is female infanticide,
the intentional killing of unborn females, due to the preference for male
offspring or son preference. Son preference is reinforced by the
low value associated, by some segments of the world community, with female
offspring. Those segments tend to regard female offspring as financial burdens
to a family over their lifetime due to their perceived inability to earn or
provide financially for the family unit as can a male. In addition, due to
social and legal convention, female offspring are less likely to carry on the
family name. Son preference is one of the most evident
manifestations of sex or gender discrimination in any society, undermining
female equality, and fueling the elimination of females’ right to exist in
instances of sex-selection abortion.

(F)

Sex-selection abortions
are not expressly prohibited by United States law or the laws of 47 States.
Sex-selection abortions are performed in the United States. In a March 2008
report published in the Proceedings of the National Academy of Sciences,
Columbia University economists Douglas Almond and Lena Edlund examined the sex
ratio of United States-born children and found evidence of sex
selection, most likely at the prenatal stage. The data revealed obvious
son preference in the form of unnatural sex-ratio imbalances
within certain segments of the United States population, primarily those
segments tracing their ethnic or cultural origins to countries where
sex-selection abortion is prevalent. The evidence strongly suggests that some
Americans are exercising sex-selection abortion practices within the United
States consistent with discriminatory practices common to their country of
origin, or the country to which they trace their ancestry. While sex-selection
abortions are more common outside the United States, the evidence reveals that
female feticide is also occurring in the United States.

(G)

The American public
supports a prohibition of sex-selection abortion. In a March 2006 Zogby
International poll, 86 percent of Americans agreed that sex-selection abortion
should be illegal, yet only 3 States proscribe sex-selection abortion.

(H)

Despite the failure of
the United States to proscribe sex-selection abortion, the United States
Congress has expressed repeatedly, through Congressional resolution, strong
condemnation of policies promoting sex-selection abortion in the
Communist Government of China. Likewise, at the 2007 United
Nation’s Annual Meeting of the Commission on the Status of Women, 51st Session,
the United States delegation spearheaded a resolution calling on countries to
condemn sex-selective abortion, a policy directly contradictory to the
permissiveness of current United States law, which places no restriction on the
practice of sex-selection abortion. The United Nations Commission on the Status
of Women has urged governments of all nations to take necessary measures
to prevent … prenatal sex selection.

(I)

A 1990 report by Harvard
University economist Amartya Sen, estimated that more than 100 million women
were demographically missing from the world as early as 1990 due
to sexist practices, including sex-selection abortion. Many experts believe
sex-selection abortion is the primary cause. Current estimates of women missing
from the world range in the hundreds of millions.

(J)

Countries with
longstanding experience with sex-selection abortion—such as the Republic of
India, the United Kingdom, and the People’s Republic of China—have enacted
restrictions on sex-selection, and have steadily continued to strengthen
prohibitions and penalties. The United States, by contrast, has no law in place
to restrict sex-selection abortion, establishing the United States as affording
less protection from sex-based feticide than the Republic of India or the
People’s Republic of China, whose recent practices of sex-selection abortion
were vehemently and repeatedly condemned by United States congressional
resolutions and by the United States Ambassador to the Commission on the Status
of Women. Public statements from within the medical community reveal that
citizens of other countries come to the United States for sex-selection
procedures that would be criminal in their country of origin. Because the
United States permits abortion on the basis of sex, the United States may
effectively function as a safe haven for those who seek to have
American physicians do what would otherwise be criminal in their home
countries—a sex-selection abortion, most likely late-term.

(K)

The American medical
community opposes sex-selection. The American Congress of Obstetricians and
Gynecologists, commonly known as ACOG, stated in its 2007 Ethics
Committee Opinion, Number 360, that sex-selection is inappropriate because it
ultimately supports sexist practices. The American Society of
Reproductive Medicine ( commonly known as ASRM ) 2004 Ethics
Committee Opinion on sex-selection notes that central to the controversy of
sex-selection is the potential for inherent gender
discrimination, …the risk of psychological harm to sex-selected
offspring (i.e., by placing on them expectations that are too high),…
and reinforcement of gender bias in society as a whole. Embryo
sex-selection, ASRM notes, remains vulnerable to the judgment that no
matter what its basis, [the method] identifies gender as a reason to value one
person over another, and it supports socially constructed stereotypes of what
gender means. In doing so, it not only reinforces possibilities
of unfair discrimination, but may trivialize human reproduction by making it
depend on the selection of nonessential features of offspring. The ASRM
ethics opinion continues, ongoing problems with the status of women in
the United States make it necessary to take account of concerns for the impact
of sex-selection on goals of gender equality. The American Association
of Pro-Life Obstetricians and Gynecologists, an organization with hundreds of
members - many of whom are former abortionists - makes the following
declaration: Sex selection abortions are more graphic examples of the
damage that abortion inflicts on women. In addition to increasing premature
labor in subsequent pregnancies, increasing suicide and major depression, and
increasing the risk of breast cancer in teens who abort their first pregnancy
and delay childbearing, sex selection abortions are often targeted at fetuses
simply because the fetus is female. As physicians who care for both the mother
and her unborn child, the American Association of Pro-Life Obstetricians and
Gynecologists vigorously opposes aborting fetuses because of their
gender. The President’s Council on Bioethics published a Working Paper
stating the council’s belief that society’s respect for reproductive freedom
does not prohibit the regulation or prohibition of sex control,
defined as the use of various medical technologies to choose the sex of one’s
child. The publication expresses concern that sex control might lead to
…dehumanization and a new eugenics.

(L)

Sex-selection abortion
results in an unnatural sex-ratio imbalance. An unnatural sex-ratio imbalance
is undesirable, due to the inability of the numerically predominant sex to find
mates. Experts worldwide document that a significant sex-ratio imbalance in
which males numerically predominate can be a cause of increased violence and
militancy within a society. Likewise, an unnatural sex-ratio imbalance gives
rise to the commoditization of humans in the form of human trafficking, and a
consequent increase in kidnapping and other violent crime.

(M)

Sex-selection abortions
have the effect of diminishing the representation of women in the American
population, and therefore, the American electorate.

(N)

Sex-selection abortion
reinforces sex discrimination and has no place in a civilized society.

(2)

Racial discrimination
findings

(A)

Minorities are a vital
part of American society and culture and possess the same fundamental human
rights and civil rights as the majority.

(B)

United States law
prohibits the dissimilar treatment of persons of different races who are
similarly situated. United States law prohibits discrimination on the basis of
race in various contexts, including the provision of employment, education,
housing, health insurance coverage, and athletics.

(C)

A race-selection
abortion is an abortion performed for purposes of eliminating an unborn
child because the child or a parent of the child is of an undesired race.
Race-selection abortion is barbaric, and described by civil rights advocates as
an act of race-based violence, predicated on race discrimination. By
definition, race-selection abortions do not implicate the health of mother of
the unborn, but instead are elective procedures motivated by race bias.

(D)

Only one State, Arizona,
has enacted law to proscribe the performance of race-selection
abortions.

(E)

Race-selection abortions
have the effect of diminishing the number of minorities in the American
population and therefore, the American electorate.

(F)

Race-selection abortion
reinforces racial discrimination and has no place in a civilized
society.

(3)

General
findings

(A)

The history of the United
States includes examples of both sex discrimination and race discrimination.
The people of the United States ultimately responded in the strongest possible
legal terms by enacting constitutional amendments correcting elements of such
discrimination. Women, once subjected to sex discrimination that denied them
the right to vote, now have suffrage guaranteed by the 19th amendment.
African-Americans, once subjected to race discrimination through slavery that
denied them equal protection of the laws, now have that right guaranteed by the
14th amendment. The elimination of discriminatory practices has been and is
among the highest priorities and greatest achievements of American
history.

(B)

Implicitly approving the
discriminatory practices of sex-selection abortion and race-selection abortion
by choosing not to prohibit them will reinforce these inherently discriminatory
practices, and evidence a failure to protect a segment of certain unborn
Americans because those unborn are of a sex or racial makeup that is
disfavored. Sex-selection and race-selection abortions trivialize the value of
the unborn on the basis of sex or race, reinforcing sex and race
discrimination, and coarsening society to the humanity of all vulnerable and
innocent human life, making it increasingly difficult to protect such life.
Thus, Congress has a compelling interest in acting—indeed it must act—to
prohibit sex-selection abortion and race-selection abortion.

(b)

Constitutional
authority

In accordance with the above findings, Congress enacts
the following pursuant to Congress’ power under—

(1)

the Commerce
Clause;

(2)

section 2 of the 13th
amendment;

(3)

section 5 of the 14th
amendment, including the power to enforce the prohibition on government action
denying equal protection of the laws; and

(4)

section 8 of article I to
make all laws necessary and proper for the carrying into execution of powers
vested by the Constitution in the Government of the United States.

3.

Discrimination against
the unborn on the basis of race or sex

(a)

In
general

Chapter 13 of title
18, United States Code, is amended by adding at the end the following:

250.

Discrimination against
the unborn on the basis of race or sex

(a)

In
general

Whoever knowingly—

(1)

performs an abortion
knowing that such abortion is sought based on the sex, gender, color or race of
the child, or the race of a parent of that child;

(2)

uses force or the threat
of force to intentionally injure or intimidate any person for the purpose of
coercing a sex-selection or race-selection abortion;

(3)

solicits or accepts funds
for the performance of a sex-selection abortion or a race-selection abortion;
or

(4)

transports a woman into
the United States or across a State line for the purpose of obtaining a
sex-selection abortion or race-selection abortion;

or
attempts to do so, shall be fined under this title or imprisoned not more than
5 years, or both.(b)

Civil remedies

(1)

Civil action by woman
on whom abortion is performed

A woman upon whom an abortion has been
performed pursuant to a violation of subsection (a)(2) may in a civil action
against any person who engaged in a violation of subsection (a) obtain
appropriate relief.

(2)

Civil action by
relatives

The father of an unborn child who is the subject of an
abortion performed or attempted in violation of subsection (a), or a maternal
grandparent of the unborn child if the pregnant woman is an unemancipated
minor, may in a civil action against any person who engaged in the violation,
obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s
criminal conduct or the plaintiff consented to the abortion.

(3)

Appropriate
relief

Appropriate relief in a civil action under this subsection
includes—

(A)

objectively verifiable money damages for
all injuries, psychological and physical, including loss of companionship and
support, occasioned by the violation of this section; and

(B)

punitive damages.

(4)

Injunctive
relief

(A)

In
general

A qualified plaintiff may in a civil action obtain
injunctive relief to prevent an abortion provider from performing or attempting
further abortions in violation of this section.

(B)

Definition

In
this paragraph the term qualified plaintiff means—

(i)

a woman upon whom an
abortion is performed or attempted in violation of this section;

(ii)

any person who is the spouse or parent of a
woman upon whom an abortion is performed in violation of this section;
or

(iii)

the Attorney
General.

(5)

Attorneys fees for
plaintiff

The court shall award a reasonable attorney's fee as
part of the costs to a prevailing plaintiff in a civil action under this
subsection.

(c)

Loss of Federal
Funding

A violation of subsection (a) shall be deemed for the
purposes of title VI of the Civil Rights Act of 1964 to be discrimination
prohibited by section 601 of that Act.

(d)

Reporting
requirement

A physician, physician’s assistant, nurse, counselor,
or other medical or mental health professional shall report known or suspected
violations of any of this section to appropriate law enforcement authorities.
Whoever violates this requirement shall be fined under this title or imprisoned
not more than 1 year, or both.

(e)

Expedited
consideration

It shall be the duty of the United States district
courts, United States courts of appeal, and the Supreme Court of the United
States to advance on the docket and to expedite to the greatest possible extent
the disposition of any matter brought under this section.

(f)

Exception

A woman upon whom a sex-selection or
race-selection abortion is performed may not be prosecuted or held civilly
liable for any violation of this section, or for a conspiracy to violate this
section.

(g)

Protection of privacy
in court proceedings

(1)

In
general

Except to the extent the Constitution or other similarly
compelling reason requires, in every civil or criminal action under this
section, the court shall make such orders as are necessary to protect the
anonymity of any woman upon whom an abortion has been performed or attempted if
she does not give her written consent to such disclosure. Such orders may be
made upon motion, but shall be made sua sponte if not otherwise sought by a
party.

(2)

Orders to parties,
witnesses, and counsel

The court shall issue appropriate orders
under paragraph (1) to the parties, witnesses, and counsel and shall direct the
sealing of the record and exclusion of individuals from courtrooms or hearing
rooms to the extent necessary to safeguard her identity from public disclosure.
Each such order shall be accompanied by specific written findings explaining
why the anonymity of the woman must be preserved from public disclosure, why
the order is essential to that end, how the order is narrowly tailored to serve
that interest, and why no reasonable less restrictive alternative
exists.

(3)

Pseudonym
required

In the absence of written consent of the woman upon whom
an abortion has been performed or attempted, any party, other than a public
official, who brings an action under this section shall do so under a
pseudonym.

(4)

Limitation

This
subsection shall not be construed to conceal the identity of the plaintiff or
of witnesses from the defendant or from attorneys for the defendant.

(h)

Definition

The
term abortion means the act of using or prescribing any
instrument, medicine, drug, or any other substance, device, or means with the
intent to terminate the clinically diagnosable pregnancy of a woman, with
knowledge that the termination by those means will with reasonable likelihood
cause the death of the unborn child, unless the act is done with the intent
to—

(1)

save the life or preserve
the health of the unborn child;

(2)

remove a dead unborn
child caused by spontaneous abortion; or

(3)

remove an ectopic
pregnancy.

.

(b)

Clerical
amendment

The table of sections at the beginning of chapter 13 of
title 18, United States Code, is amended by adding after the item relating to
section 249 the following new item:

250. Discrimination against the unborn on the
basis of race or
sex.

.

4.

Severability

If any portion of this Act or the
application thereof to any person or circumstance is held invalid, such
invalidity shall not affect the portions or applications of this Act which can
be given effect without the invalid portion or application.

May 29, 2012

Reported with an amendment, committed to the Committee of
the Whole House on the State of the Union, and ordered to be
printed

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